NEW YORK – The infamous “Access Hollywood” video in which Donald Trump bragged about grabbing women sexually without asking permission will not be shown to jurors at the former president's hush-money criminal trial, a New York judge ruled Monday.
Judge Juan M. Merchan said Manhattan prosecutors can still question witnesses about the 2005 tape, which wasn't made public until the final weeks of Trump’s 2016 White House campaign. But the judge said “it is not necessary that the tape itself be introduced into evidence or that it be played for the jury.”
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Merchan said he found the tape “relevant to the critical issues” in the case, including the prosecution's contention that it helps establish Trump's intent and motive for making and concealing a hush-money arrangement at the heart of the case. However, siding with Trump's lawyers, he said playing it could be unduly prejudicial.
Merchan issued his rulings on the “Access Hollywood” tape and other issues even after deciding last Friday to postpone the trial until at least mid-April to deal with a last-minute evidence dump that Trump's lawyers said was hampering their ability to prepare their defense.
Merchan scheduled a hearing for March 25, the trial's original start date, to address that issue.
Trump’s lawyers complained that they only recently started receiving more than 100,000 pages of documents from a previous federal investigation into the matter that put Trump’s former lawyer and fixer Michael Cohen behind bars. They asked for a three-month delay and for the case to be thrown out.
Trump's hush-money case, one of his four criminal indictments, centers on allegations that he falsified his company’s records to hide the true nature of payments to Cohen, who helped Trump bury negative stories during his 2016 presidential campaign.
Cohen paid porn actor Stormy Daniels $130,000 and arranged for the publisher of the National Enquirer supermarket tabloid to pay former Playboy model Karen McDougal $150,000 to suppress their claims that they had extramarital affairs with Trump years earlier. Trump's company then reimbursed Cohen and logged the payments to him as legal expenses, prosecutors said.
Trump, now the presumptive Republican presidential nominee in his quest to retake the White House, pleaded not guilty last year to 34 felony counts of falsifying business records. His lawyers argue the payments to Cohen were legitimate legal expenses and not part of any cover-up. Trump says he didn’t have any of the alleged sexual encounters.
Cohen pleaded guilty in 2018 to federal campaign finance violations involving the hush-money payments, as well as other, unrelated crimes, and spent about a year in prison before being released to home confinement because of the COVID-19 pandemic. Trump was not charged in the federal probe.
In other rulings Monday, Merchan denied a defense bid to bar Cohen, Daniels and McDougal from testifying as key prosecution witnesses in the Manhattan district attorney's case. However, he ruled that McDougal cannot testify about the underlying details of her alleged affair unless prosecutors can prove to him that the information is relevant.
Merchan also again rejected the defense's request that prosecutors be barred from arguing that Trump was seeking to improperly influence the 2016 election or that the National Enquirer aided in suppressing negative stories about him in a practice known as “catch and kill.”
Merchan did not rule on the prosecution's request for a gag order that would bar Trump from making public statements about jurors, witnesses and others involved in the case. The judge said he would issue a separate ruling on the defense's request that he delay the hush-money trial indefinitely until the Supreme Court rules on presidential immunity claims Trump raised in his Washington, D.C., election interference case.
Prosecutors contend the release of the “Access Hollywood” footage, followed by a flurry of women coming forward to accuse Trump of sexual assault, hastened his efforts to keep negative stories out of the press, leading to the Daniels payoff.
Trump’s lawyers argued that the “Access Hollywood” video “contains inflammatory and unduly prejudicial evidence that has no place at this trial about documents and accounting practices.” Merchan said he would reconsider allowing prosecutors to show the tape if Trump's lawyers were to open the door during the trial.
The judge said he would rule later on the prosecution's request to present evidence about some of the sexual assault allegations that surfaced after the tape was made public, which they contend provide critical context to the charges against him.
Before he decides that issue, Merchan said prosecutors will be required to make additional arguments about the admissibility of that evidence so he can better analyze it pursuant to rules governing testimony and evidence about so-called “prior bad acts.”